8. The White House responded to an audio message
by Osama bin Laden broadcast by al Jazeera satellite television
station on 23 April 2006 by saying: "The al Qaeda leadership
is on the run and under a lot of pressure. We are continuing to
take the fight to the enemy abroad, and making it difficult for
them to plan and plot against America. We are on the advance,
they are on the run, and we will not let up...We will prevail.
It's important that we continue to use every tool at our disposal
as we take the fight to the enemy."[3]
More recently, President Bush described the killing of Abu Musab
al-Zarqawi, the head of al Qaeda in Iraq, as a severe blow to
al Qaeda.[4]

9. Paul Wilkinson, Professor of International Relations
and Chair of the Centre for the Study of Terrorism and Political
Violence at the University of St Andrews, wrote to us about the
impact of the international 'war against terrorism':

Al Qaeda's core leadership, communication and
training capabilities suffered major disruption and damage when
the Taleban regime in Afghanistan, which had provided Al Qaeda
with safe haven, was overthrown in autumn 2001. Since 9/11, 15
leading Al Qaeda militants have been captured or killed, and over
3,000 suspected Al Qaeda followers have been arrested or detained.
Moreover, millions of pounds of Al Qaeda assets have been frozen
in the banking system.[5]

A letter believed to be from Osama bin Laden's deputy,
Ayman al-Zawahiri, to Zarqawi, suggests that al Qaeda has indeed
felt the impact of this campaign. In the letter, Zawahiri says
that al Qaeda has lost many of its key leaders and is virtually
resigned to defeat in Afghanistan. He also says that its lines
of communication and funding have been severely disrupted and
makes a plea for financial support.[6]

10. However, despite the claimed successes of the
campaign, international terrorists nevertheless clearly retain
the capacity to strike across the world. Professor Wilkinson wrote
to us about the enduring threat:

In attack after attack Al Qaeda's network of
networks has proved its ability to deploy large numbers of operatives
and to recruit more than sufficient new members to replace those
lost by capture and death in suicide bombing or in armed confrontations
with security forces There is no evidence that the movement
is unable to obtain the funds and explosives it needs to carry
out major coordinated mass-killing suicide bombing attacks.[7]

In fact, there is broad consensus that al Qaeda continues
to represent the most dangerous terrorist threat ever posed by
a non-state actor. With a presence in over 60 countries, it is
al Qaeda's explicit commitment to mass killing that makes it so
dangerous. Professor Wilkinson, told us about this:

I think we must not underestimate the sheer ruthlessness
and brutality of this movement. It is still acting on the decree,
the fatwa that was issued by bin Laden in February 1988 in which
all Muslims were urged to kill Americans and their allies, including
civilians, whenever and wherever possible Fortunately they
have not succeeded in doing anything as ambitious or as deadly
as the 9/11 attacks, although they certainly have plotted to undertake
more deadly attacks. In some cases those conspiracies have been
thwarted. In some cases we believe the plans may still exist,
they just have not been implemented, and it is a worry that they
may still try to implement them.[8]

11. On 24 October 2005, the then Foreign Secretary
also highlighted the brutality of the threat posed by al Qaeda
when he described to us the indiscriminate nature of terrorist
attacks and the fact that they "really do not mind who they
kill provided they kill somebody in the name of a totally perverted
ideology. It is a further illustration of the evil which we are
dealing with."[9]

12. While agreeing about the extreme danger posed
by al Qaeda, Peter Taylor, of BBC Panorama, also warned against
the tendency of attributing every terrorist incident to al Qaeda:
"there is a danger of putting the al Qaeda stamp on everything
that happenssometimes it is justified, sometimes it is
notnevertheless, the threat that these new kind of cells
that subscribe to the same philosophy as al Qaeda and bin Laden
are extremely dangerous and I think the evidence speaks for itself."[10]

13. Indeed, the evidence does speak for itself. There
has been no let up in terrorist attacks across the world since
our predecessor Committee's last Report in this inquiry.[11]
Since that Report, terrorism has hit at the heart of the United
Kingdom. On 7 July 2005, four suicide bombers from a home-grown
group inspired by al Qaeda struck in central London, killing 52
people and injuring hundreds.[12]
The report into the attacks by the Intelligence and Security Committee
found that two of the bombers spent time in Pakistan: "It
has not yet been established who they met in Pakistan, but it
is assessed as likely that they had some contact with Al Qaida
figures."[13] The
degree of al Qaeda involvement remains under investigation:[14]
"The extent to which the 7 July attacks were externally planned,
directed or controlled by contacts in Pakistan or elsewhere remains
unclear. The Agencies believe that some form of operational training
is likely to have taken place while Khan and Tanweer were in Pakistan.
Contacts in the run-up to the attacks suggest they may have had
advice or direction from individuals there. Claims in the media
that a 'mastermind' left the UK the day before the attacks reflect
one strand of an investigation that was subsequently discounted
by the intelligence and security Agencies."[15]
Two weeks after the 7 July attacks, on 21 July, four would-be-bombers
targeted London's transport system once again; none of their devices
exploded.

14. Elsewhere, on 23 July 2005, two car bombs and
a bomb placed in a suitcase in the Egyptian tourist resort of
Sharm el Sheikh killed at least 88 people, including 11 British
tourists.[16] The region
was targeted once again on 24 April 2006, when a series of explosions
in the Egyptian seaside resort of Dahab killed at least 23 people
and injured more than 60.[17]
The Egyptian authorities have blamed the attacks on local groups
'inspired' by international extremist ideology. Tourists were
once again the target on 1 October 2005, when three suicide bombers
killed at least 23 people and injured around 150 people in Bali,
Indonesia.[18] On 9 November
2005, a triple bomb attack in Amman in Jordan left at least 56
dead and around 100 injured.[19]
Meanwhile, the insurgency in Iraq continues to blaze, with a rising
death toll, and the situation in Afghanistan has deteriorated,
with an increase in the number of terrorist attacks and evidence
that the Taliban is regrouping. We discuss both countries in greater
detail later in this Report.

15. We conclude that despite a number of successes
targeting the leadership and infrastructure of al Qaeda, the danger
of international terrorism, whether from al Qaeda or other related
groups, has not diminished and may well have increased. Al Qaeda
continues to pose an extremely serious and brutal threat to the
United Kingdom and its interests.

17. This shift has implications for international
efforts to tackle terrorism. Professor Wilkinson and Peter Taylor
both told us about this: "it does make it far more difficult
for the intelligence services and the whole intelligence community
of the coalition against terrorism to track down cells and to
identify new networks as they are created, but it is even more
complex than that."[21]
Moreover, its diffuse structure gives al Qaeda "the flexibility
and resilience to adapt and sustain its global jihad in spite
of the many severe blows the movement has suffered."[22]

18. Our witnesses were all deeply concerned about
the boost that the war in Iraq has given to al Qaeda. Peter Taylor
told us about this: "they manipulate the situation in Iraq
They use the situation there to recruit, to propagandise, to fund
raise, to train and also to plan and operate."[23]
Jack Straw concurred on this point, telling us: "It is self-evidently
the truth that al Qaeda et cetera are exploiting what is going
on in Iraq."[24]
The situation in Iraq is a gift to al Qaeda in terms of propaganda.
Peter Taylor told us that recorded attacks and beheadings in Iraq
are "one of the most powerful recruiting tools that they
have".[25] Indeed,
Peter Taylor told us that by going into Iraq, "what we have
done is fanned the flames of terrorism rather than subdue them."[26]

19. Professor Wilkinson wrote to us about the importance
of al Qaeda's experience in Iraq in terms of training:

By far the more important capability for carrying
out local attacks is the availability of expertise, especially
in bomb making, operational planning and tactics. The Al Qaeda
network's supply of well-trained and experienced terrorist operatives
has been enormously increased as a result of the field experience
provided in the Iraq conflict. Foreign terrorists who have been
involved with the Al Qaeda Jihad in Mesopotamia led by the Jordanian
Abu Musab al-Zarqawi, are now able to return to their countries
of origin, including the EU member states, battle hardened and
with skills acquired and honed in Iraq. It is also noteworthy
that in recent weeks we have seen tactics methods copied from
the terrorist campaign in Iraq being used in Afghanistan by Taleban
and Al Qaeda-linked groups and their Afghan warlord allies to
attack.[27]

20. Despite this rather gloomy picture, our witnesses
gave us some cause for optimism. There has been some evidence
of strategic and ideological divisions within the broad al Qaeda
movement. This has been precipitated by the targeting of Muslims
in suicide attacks in Iraq and elsewhere. A letter believed to
be from Zawahiri to Zarqawi warns that insurgents' tactics, notably
the killing of hostages and bombings of mosques, may alienate
the wider Muslim population.[28]
Professor Wilkinson told us about this:

I do not think all the networking arrangements
necessarily favour the al Qaeda movement, because when you have
a movement which is constituted of a network of networks worldwide
there are bound to be some that begin to differ from the core
leadership in its strategy and tactics, and we are beginning to
see that. We see it in the communication that was intercepted
between Zawahiri and Zarqawi [W]here one sees a schism,
where you see people with some political criticisms of a leadership,
that is a hopeful sign because the history of terrorism shows
that when they start to quarrel with each other that is the beginning
of their decline.[29]

21. We conclude that the dispersal and fragmentation
of al Qaeda into more autonomous local cells mainly linked together
by a common ideology will make it more difficult to tackle the
threat of international terrorism. We further conclude that the
situation in Iraq has provided both a powerful source of propaganda
for Islamist extremists and also a crucial training ground for
international terrorists associated with al Qaeda.

23. However, our witnesses argued that al Qaeda is
doing rather better than the international community when it comes
to public diplomacy. Peter Taylor has looked in some detail at
al Qaeda's use of the internet as a propaganda tool. In one of
his Panorama programmes, Taylor noted that: "al Qaeda has
changed, the internet has given it wings al Qaeda has become
a global brand, driven by the power of the worldwide web."[31]
Professor Wilkinson also wrote to us about the importance that
al Qaeda attaches to propaganda: "Al Qaeda videotapes and
websites demonstrate the great importance they attach to propaganda.
Recently they have expanded into broadcasting their own news programme
called Voice of the Caliphate which attempts to use world events
to put over their movement's perverted doctrines."[32]

24. The conduct of the international community's
foreign policy, and the exploitation of perceived injustices in
this policy, are central to al Qaeda's propaganda. Key international
conflicts such as those between Israel and the Palestinians and
between India and Pakistan over Kashmir, and the situation in
Iraq, are fed into this propaganda. Peter Taylor told us about
the role that such conflicts play in recruitment: "potential
recruits are identified at radical mosques but the actual indoctrinationthe
showing of videos, of Palestine, of Chechnya, of Kashmir and increasingly
of Iraqis done privately in apartments, flats, etc, afterwards."[33]

25. This point is illustrated by bin Laden's audio
message, broadcast on 23 April 2006.[34]
This message accused the West of waging a war against Islam and
sought to identify with the Palestinian cause, which resonates
strongly with Muslims across the world. Bin Laden said: "Our
countries are burning, our homes are being shelled and our peoples
are being killed and nobody cares about us. An example of the
blatant attacks on our beliefs, our brothers and our countries
is what your ally, Israel, did in terms of storming and demolishing
Jericho Prison with the collusion of America and Britain."
He expanded to cover other perceived injustices of the West's
foreign policy: "An example of ridiculing people and holding
them in contempt is that your aircraft and tanks are destroying
houses over the heads of our kinfolk and children in Palestine,
Iraq, Afghanistan, Chechnya, and Pakistan They are determined
to continue with their Crusader campaigns against our nation,
to occupy our countries, to plunder our resources, and to enslave
us." Bin Laden also asserted that the role of al Qaeda is
to defend Muslims across the world "Our aim is clear: that
is, defending Islam, its people, and land."

26. There is a clear recognition of the need for
the international 'war against terrorism' to be multi-faceted.
In October 2005, the then Foreign Secretary told us that in addition
to the security focussed aspects of counter terrorism policy,
the United Kingdom and its allies are:

[S]eeking to deal with the causes of terrorism,
for example, in the work we have done over many years to support
the Middle East Peace Process, the very active engagement of the
United States and United Kingdom Governments, Colin Powell, Secretary
Condoleezza Rice, myself in the Peace Process in respect of Kashmir,
many other theatres, and the work which we and the UK Government
are doing both with the Home Office and the Foreign Office to
improve understanding of Islam and to give those who are of the
Islamic faith greater confidence to stand up against these evil
people; all of that is the only strategy that is sensible to follow.[35]

27. While Jack Straw told us that he thought "We
would be naive if we thought if we eliminated those problems,
this infection will go",[36]
he also said that "if we want to engage the minds of people
in the Islamic world we need to see better progress, for example
on the Middle East Peace Process."[37]
Asked whether the United Kingdom is doing enough to counter terrorist
propaganda, the former Foreign Secretary told us: "I think
we can never do enough to counter the propaganda, it is a most
extraordinary moral relativism. We have to counter it and we have
to say there are some absolutes in our society."[38]
However, Jack Straw also noted the work that is being done in
this area, for example the FCO's Engaging with the Islamic World
Programme.[39]

28. During a visit to Indonesia in March 2006, Prime
Minister Tony Blair emphasised the need for greater understanding
between people of different faiths, adding that "within that
greater understanding we've got a chance of resolving the conflicts
that there are in the world."[40]
There have also been efforts to communicate better with the Muslim
community worldwide. For example, 'British Muslims', a recent
publication by the British Council, seeks to inform the dialogue
between communities.[41]
However, all of our witnesses were clear in their opinion that
the United Kingdom and its allies should be doing far more in
this area. Professor Wilkinson told us:

I think we are failing on this particular score.
The Americans are only spending, we discovered, 3 per cent of
their entire defence budget on public diplomacy on information.
If you compare that with the Cold War years where information
was so importantit
ultimately helped us to end the Cold WarI
think it is absolutely incompetent of us not to be doing more
to use all the channels of communication that are open to us.
We have the people with the language expertise, we have the media
technology, but we are not making enough use of it, in my view,
and I think that is a big failing: because as long as those ideas
are unanswered, we are really creating new generations of suicide
bombers while we are busy trying to unravel the existing networks
and new ones are emerging [I]f only we had invested the
effort, and I think it is not too late. We should be doing far
more of that. The money we spent on it would be chicken feed compared
to the sort of money that is being spent on the deployment of
our forces and the expensive technology that that requires.[42]

29. Peter Taylor told us about the role that the
BBC could play in this area:

The BBC Arabic Service, which is in the planning,
will not be a propaganda vehicle. That is not the BBC's job. We
are not in the business of propaganda. What it will do, I am sure,
is present an alternative or a different perspective on events
to that propounded by an Al Jazeera, which has been phenomenally
successful. You go into any Arab cafe in America or anywhere and
they are not watching BBC World, they are watching Al Jazeera;
so I think the advent of a BBC Arabic service will go some way
towards correcting the perceptions, but I stress, it will not
be a propaganda vehicle, it will be a sort of corrective, if you
like.[43]

30. We conclude that propaganda is one of the
major tools in al Qaeda's arsenal. We further conclude that progress
towards resolving key international conflicts would go some way
to removing widespread feelings of injustice in the Muslim world
that feed into the causes of and support for terrorism. Although
the United Kingdom and its allies recognise this, and are working
to resolve these conflicts, they are putting insufficient effort
and funding into countering terrorist propaganda. Much greater
effort needs to be made to communicate effectively with the Arab
and Islamic world in order to bridge the gulf of mistrust that
feeds into international terrorism. We recommend that the Government
continue to engage with Muslim leaders and clerics who speak out
against distorted and extremist versions of their faith. We commend
the Government's Engaging with the Islamic World Programme as
well as the decision to set up an Arabic BBC World Service television
station, but note that it will initially broadcast for only 12
hours a day and be much less generously funded than al Jazeera,
which is heavily subsidised by the government of Qatar. We conclude
that much more could be done. We recommend that the Government
set out in its response to this Report what plans it has to expand
its work in this field. We also recommend that the BBC World Service
carry out an evaluation of the cost-effectiveness of this expenditure.

31. Professor Wilkinson wrote to us about the impact
of international policy on human rights:

There has been a tragic failure to wage the battle
of ideas against the extremists who preach hatred and incite people
to commit terrorism. All democratic governments, including our
own have a special responsibility to actively promote democratic
values, the rule of law and human rights Action counts far
more than words in the difficult world of upholding democratic
values and human rights. If the behaviour of democratic states
flatly contradicts our stated values we lose our credibility in
the battle of ideas worldwide.[44]

Two areas of policy with regard to the international
'war against terrorism' have caused particular concern vis a vis
human rights: Guantánamo Bay and extraordinary rendition.

33. Amnesty International has attacked the system
of detentions, saying:

The detention camp at the US Naval Base in Guantánamo
Bay in Cuba has become a symbol of the US administration's refusal
to put human rights and the rule of law at the heart of its response
to the atrocities of 11 September 2001. Hundreds of people of
around 35 different nationalities remain held in effect in a legal
black hole, many without access to any court, legal counsel or
family visits. As evidence of torture and widespread cruel, inhuman
and degrading treatment mounts, it is more urgent than ever that
the US Government bring the Guantánamo Bay detention camp
and any other facilities it is operating outside the USA into
full compliance with international law and standards. The only
alternative is to close them down.[46]

34. We asked Amnesty International and Human Rights
Watch for evidence that torture is being used at Guantánamo
Bay. Kate Allen, Director of Amnesty International UK, told us:
"I think we have very strong accounts, particularly from
young men from Tipton, who documented on their return to the UK
what had happened to them, of being kept awake, of loud music,
of threats being made to them, of being held and interrogated
endlessly day after day I think that amounts to torture."[47]
Ms Allen went on to say: "I think if you hold people incommunicado
and you interrogate them endlessly day upon day, that you have
extremes of temperature that are used, that you do not allow them
any contact with their families, that you have loud noise playing
continuously, that you threaten people in terms of their lives
and their well-being, I think that adds up to torture."[48]
Steve Crawshaw, London Director at Human Rights Watch gave his
perspective:

I think it is important to remember that torture
is not just applying electrodes to the testicles to put
it this way, a number of the techniques that have been used have
led to both self-incriminating evidence which was completely falsein
other words the pressures were great enough that they confessed
to things which they had not done and provably had not doneyou
know, having been together with Osama bin Laden at a particular
time when demonstrably, and as, indeed, the British authorities
later confirmed, they had actually been somewhere else. Those
kinds of pressures are banned for the same reasons [N]ot
everybody has been tortured at Guantánamo. That is not
the suggestion. Some people have got off relatively lightly and
others have not.[49]

35. In April 2006, Professor Philippe Sands QC told
us his views on Guantánamo Bay:

I think Guantánamo should be closed down
tomorrow. Guantánamo is terribly undermining of a legitimate
effort to protect against a serious threat and it is being used
mainly as an indication of the values that our societies purport
to hold dear not being followed when their vital interests are
at stake, and I think it has been terribly undermining in that
sense. I recall here a statement made by the great American diplomat,
George Kennan, who wrote a famous telex in 1947 from Moscow, where
he was posted for the State Department, on the emergent Soviet
threat, and he ended that telex by saying, "The greatest
threat that can befall us as a nation is to become like those
who seek to destroy us."[50]

The recent suicide of three detainees at Guantánamo
Bay has reinvigorated calls for the camp to be closed down.

36. Professor Sands told us that in his view there
were only two categories into which those detained at Guantánamo
might fall and that they should either be treated as Prisoners
of War or as Criminals. He said that there is no third category
of Illegal Combatants as the US asserts. The US view is that they
are not Prisoners of War and they cannot all be treated as criminals
and prosecuted with due process for practical as well as legal
reasons. The USA therefore argues that there is a third category
of Illegal Combatants into which those detained at Guantánamo
fall and that they are entitled to detain them.

37. The USA denies allegations that it is mistreating
detainees and argues that Guantánamo Bay is an important
tool in the 'war against terrorism'. Speaking at Chatham House
in February 2006, John Bellinger, Legal Adviser to the US Department
of State, outlined the US position:

[W]e believe we have been and still are engaged
in an international armed conflict with al Qaida. They have attacked
our embassies, our military vessels and military bases, our capital
city, and our financial center. On September 11, they killed nearly
three thousand people, including 67 British nationals. The UN
Security Council has reaffirmed our right of self-defense in relation
to their attacks, which were planned and launched from abroad,
in resolution 1373. In the context of this conflict, we believe
that the appropriate legal framework for the detention and transfer
of al Qaeda is the international law of war. While domestic criminal
law has been used in the past to deal with terrorism, we believe
that traditional systems of criminal justice, which were designed
for different needs, do not adequately address the threat posed
by this enemy, which continues to plan and launch attacks of a
magnitude and sophistication previously achievable only by organized
states.[51]

Mr Bellinger went on to set out the USA's position
on torture:

"In its activities relating to detainees,
the United States Government complies with its Constitution, its
laws, and its treaty obligations. We have made clear our position
on torture: U.S. criminal law and treaty obligations prohibit
torture, and United States policy is not to engage or condone
torture anywhere Where there have been cases of unlawful
treatment of detainees, the U.S. has vigorously investigated and,
where the facts have warranted it, prosecuted and punished those
responsible."

38. During her visit to Blackburn on 1 April 2006,
US Secretary of State Condoleezza Rice spelled out the difficulties
that the USA faces over what to do with suspects captured in Afghanistan
and elsewhere. She also reiterated the point that Guantánamo
Bay is a US response to the very real threat posed by international
terrorism:

[W]e have to recognize that Guantanamo is there
for a reason. It's there because we captured people on battlefields,
particularly in Afghanistan but sometimes, frankly, on the battlefields
of our own democratic societies, who were either plotting or planning
or actively engaged in terrorist activities. And we have released
hundreds of people from Guantanamo. It is not as if everybody
who was in Guantanamo on October 1st, 2001 or January 1st, 2002
is still in Guantanamo. We have gone out of our way to try to
release people. We've released British citizens back to Great
Britain. We've done that with many different countries. But there
are some people who cannot either be safely be released to their
countries or certainly safely released, and there are people for
whom the value of the information that they have is still relevant
to the fight against terror.[52]

39. The British Government has been criticised for
its reticence to criticise loudly the Guantánamo Bay camp.
In evidence to this Committee, Human Rights Watch said: "the
UK government chooses to praise the US government even while it
remains in blatant defiance of international law. As far as we
are aware, the British government has not expressed its concerns
about the US failure to provide the conditions in which rapporteurs
can do their work. Instead, it has publicly 'welcomed' the alleged
'engagement', which has so far proved worthless."[53]
For its part, Amnesty International has described the United Kingdom's
role on Guantánamo as "lamentable and not improving"
since "we have moved from commenting on Guantánamo
to an attempt to offer an explanation as to why Guantánamo
might be necessary."[54]

40. The last Report in this inquiry called on the
Government to make strong representations about the complex. The
Government responded by saying that the US authorities were familiar
with the British position.[55]
In a previous Human Rights Report, we noted the oppressive conditions
and mistreatment at Guantánamo Bay and the USA's strong
denial of mistreatment at the facility as well as its determination
to continue to hold detainees there. The Report also noted criticisms
of the Government's failure to engage seriously with the USA on
these points as well as calls by international human rights groups
for the Government to take a more publicly critical stance. Ian
Pearson, the then Minister for Human Rights, was quick to reject
these suggestions, telling the Committee: "We made clear
to the US authorities on many occasions and at every level that
we regard the circumstances under which detainees are held in
Guantánamo Bay as unacceptable, and the US Government knows
our view on this."[56]
Notwithstanding the Minister's comments, we concluded that the
continued use of Guantánamo Bay as a detention centre outside
all legal regimes diminishes the USA's moral authority and is
a hindrance to the effective pursuit of the 'war against terrorism'.
We recommended that the Government make "loud and public"
its objections to such a prison regime.[57]

41. The Committee's concerns were echoed by a UN
report released in February 2006, which called for the closure
of Guantánamo Bay as soon as possible. Among its conclusions,
the Report says:

Terrorism suspects should be detained in accordance
with criminal procedure that respects the safeguards enshrined
in relevant international law. Accordingly, the United States
Government should either expeditiously bring all Guantánamo
Bay detainees to trial, in compliance with articles 9(3) and 14
of ICCPR, or release them without further delay. Consideration
should also be given to trying suspected terrorists before a competent
international tribunal.[58]

The White House dismissed the report as "a discredit
to the UN", because investigators did not travel to the camp.
"[The Unedited Report] selectively includes only those factual
assertions needed to support those conclusions and ignores other
facts that would undermine those conclusions. As a result we categorically
object to most of the Unedited Report's content and conclusions
as largely without merit and not based clearly in the facts."[59]
In response, the investigators said they rejected an offer to
go to the prison complex because they would not have been allowed
to meet the prisoners.[60]

42. Recently, the British Government has edged towards
a more critical public stance on Guantánamo Bay. In the
wake of the UN report, Northern Ireland Secretary Peter Hain said
that he would prefer to see the camp closed.[61]
The Prime Minister, who had previously referred to the prison
complex as an "anomaly" that should be dealt with "sooner
or later", went further when he said on 17 March 2006 that
it would be better if it were closed.[62]
We asked the former Foreign Secretary Jack Straw about Guantánamo
Bay just two days before this, and he told us:

On Guantánamo Bay it is an anomaly
which, as the Prime Minister said, will come to an end and should
come to an end sooner or later, we all hope sooner. The American
Government is aware of that and it is working on it, but again
I simply, at the risk of repetition, say that they have practical
problems. On the issue of damage to the United States' reputation,
I think views vary but it is just worth bearing in mind that the
September 11 terrorist atrocities actually happened and they were
not caused by the CIA or Mossad but by al Qaeda.[63]

43. He went on to explain that the USA's attempts
to close Guantánamo Bay had slowed because:

[T]he problem they face is what to do with these
individuals, which countries they go back to. In the case of British
citizens, it would be straightforward, we would have them back
here. I was able to negotiate that, and that has been true for
citizens of a number of other countries, but their concern is
that quite a number of these are Afghans. Do they go back to Afghanistan?
Some are Pakistanis. Do they go back to other countries? In what
circumstances can they transfer them? There is a process taking
place.[64]

Notwithstanding the practical difficulties of closing
the camp, the right to a free and fair trial is enshrined in international
instruments to which the USA and United Kingdom are party, such
as the Universal Declaration on Human Rights and the International
Covenant on Civil and Political Rights.

44. We also asked Mr Straw why the Government had
not made loud and public its opposition to the prison regime,
and he said:

I talk about the issue quite regularly to my
American counterparts. They are also well aware of opinion around
the world and in the United States on it, but they have just got
practical problems they have got to deal with, and if we were
in that situation we would have a practical problem, too. I do
just say that if September 11 had happened in this country rather
than the United States, it would have changed our politics and
security parameters just as it has changed the Americans. It just
would have done.[65]

In its response to our annual Report on Human Rights,
the FCO went further than in previous exchanges with the Committee
when it stated that the Government:

has made clear publicly that it regards the circumstances
under which detainees continue to be held in Guantanamo as unacceptable.
The United States Government knows our views. As the Prime Minister
said on 16 March 2006, it would be better if Guantanamo were closed.
We will continue to raise our concerns about Guantanamo Bay and
work with the US authorities to resolve outstanding issues.[66]

45. We note that in a speech to the Royal United
Services Institute the Attorney-General described not just the
circumstances but the very existence of the camp at Guantánamo
as "unacceptable", although he was careful to say that
this was his personal opinion.[67]
He called for the camp to be closed down:

Not only would it, in my personal opinion, be
right to close Guantanamo as a matter of principle, I believe
it would also help to remove what has become a symbol to manyright
or wrongof
injustice. The historic tradition of the United States as a beacon
of freedom, liberty and of justice deserves the removal of this
symbol.[68]

On 15 June 2006, during a debate on the Committee's
Report on Human Rights, Minister for Trade and Human Rights Ian
McCartney told the House:

We have long made it clear that we regard the
circumstances under which detainees continue to be held at Guantánamo
Bay as unacceptable. The US Government know our views, which we
have reiterated to them. As the Prime Minister has said, it would
be better if Guantánamo were closed. We have also heard
the public remarks of the Attorney-General and the Lord Chancellor.
We raise those concerns in our regular discussions on detainee-related
issues with the US Government. I give my hon. Friends the commitment
that we will continue to do so.[69]

Pressed by the Chairman on whether Guantánamo
Bay is unacceptable and should be closed, the Minister added:
"Yes, that is what has been said. Furthermore, that is what
I believe." On 19 May 2006, the UN Committee against Torture
added its voice to those calling for the closure of the camp.

46. We acknowledge that there is a problem of
what to do with some of the detainees at Guantánamo and
that those detained include some very dangerous terrorists. We
also conclude that the continuing existence of Guantánamo
diminishes US moral authority and adds to the list of grievances
against the US. We further conclude that detentions without either
national or international authority work against British as well
as US interests and hinder the effective pursuit of the 'war against
terrorism'. We conclude that those who can be reasonably safely
released should be released, those who can be prosecuted as criminals
should be prosecuted and that as many others as possible should
be returned to their countries of citizenship. We commend the
British Government for its policy of urging the US government
to move towards closing Guantánamo.

48. The US government has denied the use of torture
as part of the process of rendition. In response to a letter written
by the then Foreign Secretary on behalf of the United Kingdom
as President of the EU, US Secretary of State Condoleeza Rice
said on 5 December 2005:

Rendition is a vital tool in combating trans-national
terrorism. Its use is not unique to the United States, or to the
current administration [However] the United States does not
permit, tolerate or condone torture under any circumstances.

The United States has respectedand
will continue to respectthe sovereignty of other countries.

The United States does not transport, and has
not transported, detainees from one country to another for the
purpose of interrogation under torture.

The United States does not use the airspace or
the airports of any country for the purpose of transporting a
detainee to a country where he or she will be tortured.

The United States has not transported anyone,
and will not transport anyone, to a country when we believe he
will be tortured. Where appropriate, the United States seeks assurances
that transferred people will not be tortured.[71]

49. These comments prompted discussion about differences
between the interpretations of what constitutes torture in the
USA and United Kingdom. We asked Jack Straw about this. He wrote
to us, saying:

First of all, it is important to note that the
US Detainee Treatment Act, enacted on 30 December 2005, provides
that no individual in the custody or under the physical control
of the US Government, regardless of nationality or physical location,
shall be subject to cruel, inhuman or degrading treatment of punishment
On the question of definitions, the United Kingdom understands
the term "torture" to have the meaning set out in Article
1 of the UN Convention against Torture and Other Cruel, Inhuman
or Degrading Treatment or Punishment (CAT). Article 1 CAT defines
torture as "any act by which severe pain or suffering whether
physical or mental is intentionally inflicted...". It does
not, however, give specific examples of what constitutes torture.
The understanding of the definition of torture made by the US
on ratifying CAT specifies the meaning of "mental pain or
suffering" in more detail than Article 1 CAT. The UK made
no reservations or understandings on ratification and has not
adopted a formal definition of what constitutes mental pain or
suffering for the purposes of Article 1. Section 134 of the Criminal
Justice Act 1988 provides that a public official commits torture
if he intentionally inflicts severe pain or suffering on another
in the performance of his duties, and does not define "severe
pain or suffering".[72]

50. The campaign group Reprieve has outlined allegations
of British involvement in the rendition of Bisher al Rawi and
Jamil El-Banna, who were detained in the Gambia and then sent
to a prison in Kabul and Bagram airbase in Afghanistan for interrogation,
before their transfer to Guantánamo Bay. Commenting on
the case, Reprieve wrote:

"There is developing evidence of (1) British
governmental involvement in the men's seizure and rendition, (2)
British assurances that the men could safely go to the Gambia
to set up a mobile peanut-processing plant, (3) telegrams that
indicate direct British involvement in their seizure once they
arrived, (4) the identity of the CIA plane that was used to render
them, and (5) the failure to assist them despite the fact that
they worked to help British intelligence."[73]

In addition, Reprieve outlined the case of Binyam
Mohammed Al-Habashi, who underwent torture and interrogation in
Morocco after his detention in Pakistan; some information may
have come from British intelligence sources.[74]
We asked the former Foreign Secretary about the al-Habashi case,
but he refused to answer our questions, saying that he considered
the issue a matter for the Intelligence and Security Committee.[75]

51. On 15 June 2006, during a debate on the Committee's
Report on Human Rights, Minister for Trade and Human Rights Ian
McCartney commented on these cases: "In the cases of el-Banna
and el-Rawi, we did not request the detention, and we played no
role in their transfer to Afghanistan and Guantánamo. Benyam
Mohammed Al Habashi was interviewed once by a member of the security
services in Karachi in 2002, but the security services had no
role in his capture or transfer from Pakistan."[76]

52. The Foreign Affairs Committee has a long-standing
interest in the question of extraordinary rendition. The last
Report in this inquiry concluded: "If the Government believes
that extraordinary rendition is a valid tool in the war against
terrorism, it should say so openly and transparently so that it
may be held accountable."[77]
Our recent Human Rights Report also discussed the issue. We noted
that a range of investigations into extraordinary rendition and
black sites had been launched across Europe, including one by
the Council of Europe and at a judicial level in Germany, Italy
and Spain. In June 2006, the Council of Europe's Committee on
Legal Affairs and Human Rights released a draft report. This claimed
that 14 European states have colluded with the CIA in its pursuit
of extraordinary rendition and that there is evidence to support
suspicions that secret prisons are or were located in Poland and
Romania.[78] Washington
rejected the report, saying that it contained nothing new and
was full of allegations but "thin on facts".[79]

53. The Government has denied any role in the process
of extraordinary rendition, and said in its response to our last
report on the Foreign Policy Aspects of the War against Terrorism
that its "policy is not to deport or extradite any person
to another state where there are substantial grounds to believe
that the person will be subject to torture The British Government
is not aware of the use of its territory or airspace for the purposes
of 'extraordinary rendition'."[80]
The then Foreign Secretary told the Committee on 24 October 2005
that its position in respect of extraordinary rendition:

has not changed. We are not aware of the use
of our territory or air space for the purpose of extraordinary
rendition. We have not received any requests or granted any permissions
for use of UK territory or air space for such purposes. It is
perfectly possible that there have been two hundred movements
of United States aircraft in and out of the United Kingdom and
I would have thought it was many more; but that is because we
have a number of US air force bases here, which, under the Visiting
Forces Act and other arrangements they are entitled to use under
certain conditions.[81]

54. Jack Straw did undertake to conduct research
to establish if the USA had made any requests for renditions through
British airspace, and on 12 December 2005 issued a written answer
stating that research by Government officials had failed to identify
any occasion since 11 September 2001 when the USA had requested
permission for a rendition from or through the United Kingdom.[82]
Both the British and US governments have categorically denied
directly to the Committee that the USA has used British airspace
or airports for the purposes of extraordinary rendition since
11 September 2001.

55. In March 2006 Alistair Darling, then Secretary
of State for Transport and Adam Ingram, Minister of State (Armed
Forces) at the Ministry of Defence admitted that six CIA planes
linked to rendition had passed through the United Kingdom.[83]
We asked Jack Straw about this on 17 March 2006, and he told us:

I have not got the answer in front of me from
Adam Ingram, but it did not add a scintilla of evidence in support
of the claim that there had been secret CIA flights coming through
here with prisoners on them about whom we knew nothing. Not a
scintilla It does not follow for a second that because there
are flights here with CIA aeroplanes that on those aeroplanes,
in breach of undertakings given by successive American administrations,
there were people being rendered through UK air space or territory
without our agreement if there had been people rendered in
this way, I think it is a fair bet that somebody would have spotted
this, somebody on the ground, or somebody would have told somebody.
No one has come forward, nobody at all.[84]

Nevertheless, the Government adhered to its position
in its response to our annual Report on Human Rights, stating
that it has not approved any renditions, that it has made clear
to the USA that renditions through British or Overseas Territory
airspace require its permission, and that it is co-operating fully
with the investigation by the Council of Europe.[85]

56. In December 2005 Jack Straw told us that allegations
in the media of mistreatment of detainees in Greece by the British
intelligence services were "in the realms of the fantastic."[86]
When subsequent press reports appeared to cast more light on these
allegations and threw doubt on the former Foreign Secretary's
comments, we wrote to him requesting fuller answers. His response
stated:

You have made a number of inaccurate assertions
about "what did or did not happen in the presence of British
officials in Greece" last year I am not going to give
details of operations nor of contacts with liaison services, all
of which take place within authority provided by Parliament You
make a serious unqualified further allegation that, "not
for the first time," your Committee "has been told,
at best, only part of the truth." Since you have been categorical
in this claim, please let me know the details of the occasions
when I have told your Committee "at best only part of the
truth. You also say that the Committee's questions on extraordinary
rendition over the last year "have not been taken seriously."
What justification do you have for saying this? It is completely
untrue. I have, as I always do with your Committee's and any other
Parliamentary colleagues' questions, gone to great lengths to
deal with the matter very seriously.[87]

The Chairman of the Committee responded:

You also ask me to justify the Committee's view
that its questions on rendition have not been taken seriously.
There is nothing new in this. You will recall that in a Report
at the end of the last Parliament, the Committee concluded that
"the Government has failed to deal with questions about extraordinary
rendition with the transparency and accountability required on
so serious an issue" and called on it to "end its policy
of obfuscation." The comment was justified at the time and
in the Committee's view it remains justified. This view has been
reinforced by the recent development which has seen the FCO providing
quite full answers to opposition party spokesmenfuller,
certainly, that those it has provided to the Committee. Welcome
though these fuller statements are, we fail to see why they could
not have been made in response to the Committee's questions. A
particular case in point is the admission to William Hague in
your letter of 6 February that an approach was made by the US
authorities in connection with the rendition of a detainee in
2004.[88]

57. This exchange of letters underlines the unwillingness
of the Government to engage with the Committee on this issue in
a transparent manner. Although the then Foreign Secretary issued
a statement on extraordinary rendition on 20 January 2006, this
was in response to a leaked document that appeared to demonstrate
the Government's determination to limit debate on rendition, not
the Committee's inquiries. In that statement, Jack Straw said
again that the United Kingdom had no knowledge of the transfer
of people through British airspace for the purposes of extraordinary
rendition, and that the FCO had completed a search for requests
from the USA.

58. We conclude that there has been a lot of speculation
about the possible use of rendition to countries where torture
can take place, so called "Black Sites" and the complicity
of the British Government, all of which would be very serious
matters, but that there has been no hard evidence of the truth
of any of these allegations. The British and US governments have
categorically denied that either UK airspace, or airports have
been used by the US government for rendition or extraordinary
rendition since 11 September 2001. We reiterate our strong view
that the Government must deal with extraordinary rendition in
a transparent manner with timely answers to questions from this
Committee. We conclude that it is regrettable that far more detailed
information has been given in parliamentary answers to opposition
party spokesmen than has been given in response to questions from
this Committee.

60. The Committee set out the three bases for the
use of force by states:

The United Nations Charter outlaws the use of
force with only two established exceptions: individual or collective
self-defence in response to an armed attack (Article 51), and
action authorised by the UN Security Council as a collective response
to a threat to the peace, breach of the peace or act of aggression
(Chapter VII). In addition, some have argued that there exists
a right to use force to protect against a massive violation of
fundamental human rights (humanitarian intervention).[90]

The Committee also set out comments by the Prime
Minister in March 2004 that have been interpreted by some to suggest
that he questions the adequacy of international law on the use
of force and hinting at his support for a reappraisal of anticipatory
self-defence and the existing order of international law.[91]

61. The Committee asked the Government about its
position towards reform of international law in this area. It
also looked forward with interest to the conclusions of the Panel
of eminent Persons examining the case for reform in the UN and
concluded that "a doctrine of humanitarian intervention appears
to be emerging, but that its application in the context of the
war against terrorism raises difficult questions of interpretation
and embodies significant risk." In its response to that Report,
the Government told the Committee: "The Government supports
the work of the Secretary-General's High Level Panel on Threats,
Challenges and Change. We hope that it will provide concrete recommendations
for improving the UN's response to the full range of threats to
international peace and security."[92]
In the area of humanitarian intervention, the Government told
us:

"there are occasions when it is right to
intervene militarily in response to large-scale humanitarian crises.
The Security Council has been increasingly willing to take this
view in particular situations There have been a number of
attempts to establish international consensus on guidelines or
criteria to be used in deciding when military action is justified
The Government hopes that the High Level Panel established by
the Secretary-General will make recommendations in this area."

62. When he appeared before us as a witness in April
2006, Professor Philippe Sands QC said this about the existing
framework of international law:

[C]oming back to the fundamental question: are
the rules adequate to deal with the threats that we now face?
My view is that they are adequate, that if the State finds itself
in a situation in which a malign organisation, al Qaeda or some
other entity, is assembling weapons of mass destruction, it does
not have to wait until the Security Council has authorised the
use of force; if it is threatened by the actual use of force it
is entitled to use force in self-defence. So those rules remain
adequate to deal with a changed situation. So it is the positive
side of the rather amorphous nature of international law rules
that they are sufficiently ambiguous to evolve with time to take
into account new situations. They are not set in stone.[93]

At the same time, Professor Sands cautioned against
unilateral efforts to alter the international legal framework:
"[I]n a complex globalising world we have an interest in
a rules-based system setting forth minimum standards of behaviour.
If you start unilaterally tinkering with the rules and getting
rid of the ones that you do not like others will do the same thing
in relation to the rules that they do not like."[94]

63. On the question of humanitarian intervention,
Professor Sands told us about the limited reforms endorsed by
the UN General Summit in September 2005. These reforms did not
go as far as the recommendations of the High Level Panel:

[U]ltimately the changes which were adopted were
regrettably very limited and I think insufficient to apply the
changes that the Secretary General's high level panel required,
particularly, for example, in relation to the question of a state's
responsibility to protect. What do you do when a massive and
fundamental violation of human rights is taking place in another
country, do you stand by and do nothing at all? The high level
panel came up with reasonably specific rules to try to move the
UN rules along a little bit and State said, "No, we are not
having that, we are basically satisfied with the rules as they
are."[95]

64. On the subject of humanitarian intervention,
the UN Summit's outcome document says:

Each individual State has the responsibility
to protect its populations from genocide, war crimes, ethnic cleansing
and crimes against humanity. This responsibility entails the prevention
of such crimes, including their incitement, through appropriate
and necessary means. We accept that responsibility and will act
in accordance with it. The international community should, as
appropriate, encourage and help States to exercise this responsibility
and support the United Nations in establishing an early warning
capability.

The international community, through the United
Nations, also has the responsibility to use appropriate diplomatic,
humanitarian and other peaceful means, in accordance with Chapters
VI and VIII of the Charter, to help to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity.
In this context, we are prepared to take collective action, in
a timely and decisive manner, through the Security Council, in
accordance with the Charter, including Chapter VII, on a case-by-case
basis and in cooperation with relevant regional organizations
as appropriate, should peaceful means be inadequate and national
authorities are manifestly failing to protect their populations
from genocide, war crimes, ethnic cleansing and crimes against
humanity. We stress the need for the General Assembly to continue
consideration of the responsibility to protect populations from
genocide, war crimes, ethnic cleansing and crimes against humanity
and its implications, bearing in mind the principles of the Charter
and international law. We also intend to commit ourselves, as
necessary and appropriate, to helping States build capacity to
protect their populations from genocide, war crimes, ethnic cleansing
and crimes against humanity and to assisting those which are under
stress before crises and conflicts break out.[96]

65. Professor Sands wrote to us about this. Commenting
on the various reform proposals, he told us that they

"indicate a move towards a right to use
military force to protect fundamental human rights. However, the
conditions under which such force could be used, if at all, remain
unclear, and a number of important states remain opposed to this
development. In my view the recent conflict in Iraq has tended
to undermine developments in this direction, since it has supported
doubters who are concerned about motive and possible abuse."[97]

66. We conclude that despite the reforms adopted
by the 2005 UN General Summit, there remain uncertainties over
the international legal framework for humanitarian intervention.
We recommend that the Government set out in its response to this
Report what steps it is taking to establish a consensus on whether
and when intervention on humanitarian grounds is permissible.